IS NATO WITHIN THE LAWS OF WAR WHEN IT BOMBS CIVILIANS?

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Date: Tue, 18 May 1999 11:40:06 -0700
From: Sid Shniad <shniad@sfu.ca>
To: ccpa@policyalternatives.ca
Subject: IS NATO WITHIN THE LAWS OF WAR WHEN IT BOMBS CIVILIANS?

The Globe and Mail					May 18, 1999

IS NATO WITHIN THE LAWS OF WAR WHEN IT BOMBS CIVILIANS?

	It's not enough for the military alliance to point to 
	Slobodan Milosevic's criminality; NATO's announcement 
	that it would resort to "area bombing" comes close to 
	knowingly violating international humanitarian law.

	By Irwin Cotler, Montreal

The systematic and widespread policy and practice of Serbian 
ethnic cleansing in Kosovo — forcible confinement, 
disappearances, torching of villages, mass deportations, murder, 
rape — are not only standing violations of the laws and customs of 
war, but crimes against humanity committed against the civilian 
Kosovar population; and the perpetrators of these international 
crimes, including Yugoslav President Slobodan Milosevic, are 
personally liable for these Nuremberg offences.

But the laws of war — the international humanitarian law — apply 
to all states and belligerents, not just to the Serbs. Therefore, even 
if the North Atlantic Treaty Organization's bombing campaign can 
be justified under the doctrine of humanitarian intervention (the use 
of force to prevent a humanitarian catastrophe), the "collateral 
damage" from these attacks — such as the horrific missile attacks 
on civilian targets, including civilian vehicles, a hospital complex 
and the Chinese embassy, and the recent bombing of a Kosovo 
village, killing some 100 ethnic Albanians — is also subject to the 
principles of customary international law. Among them are these:

  Weapons and means of warfare must not cause "superfluous 
injury" or "unnecessary suffering" (the quoted words are from the 
1949 Geneva Conventions), or cause severe damage to the 
environment.

  Attacks against civilians or civilian objects are expressly prohibited 
under the principle of civilian immunity, which requires that 
stringent safeguards be taken even when carrying out attacks 
against military objectives.

  As a corollary, there is a clear prohibition against "indiscriminate" 
attacks — those that may be expected to cause incidental loss of 
civilian life, injury to civilians or damage to civilian objects that 
would be excessive in relation to the concrete military objective.

  Warring parties, such as NATO, bear a particular responsibility for 
the bombing of densely populated areas, such as Belgrade. These 
include taking precautions to verify that targets are not civilian 
objects; and to guard against "indiscriminate" warfare such as area 
bombing — including the use of cluster bombs — in populated 
areas with its collateral civilian injury and loss of life.

The NATO announcement that it would resort to "area bombing" in 
Belgrade — coming as it did shortly after the NATO summit of 
April 25, at which the alliance decided to intensify the bombing 
while acknowledging the enhanced risk to civilians — comes 
perilously close to NATO knowingly violating international human-
itarian law. The disclaimer by NATO Secretary-General Javier 
Solana, that Mr Milosevic is fully responsible for everything that 
follows from these attacks, cannot serve as an exculpatory defence.

Indeed, several recent NATO bombing attacks have arguably 
violated the basic principles of international humanitarian law, and 
haven't been validated by the horrific crimes of Mr. Milosevic or the 
legality of humanitarian intervention to stop them. As Mary 
Robinson, the United Nations Commissioner for Human Rights, 
recently put it: "In the NATO bombing . . . large numbers of 
civilians have been incontestably killed, [and] civilian installations 
targeted on the basis that they are or could be of military 
applications." These include:

  The mistaken bombing of civilian targets, including a civilian 
passenger train, a civilian refugee vehicle and a hospital complex, 
where high-flying pilots are unable to verify the military nature of 
the target and do not take all feasible precautions to avoid civilian 
deaths and injuries;

   The politically motivated destruction of civilian factories and 
other property belonging to supporters of Slobodan Milosevic that 
appear to have no requisite "concrete and direct military 
advantage";

  Attacks on Yugoslavia's civilian electrical transformers, where the 
severe consequences to civilians outweigh any marginal military 
benefit;

  The intentional use of cluster bombs whose submunitions 
(bomblets) do not explode on impact but remain live long enough 
to create a grave, and lingering, danger for the civilian population 
— the equivalent of using and-personnel land mines;

   The repeated bombing of television and broadcast facilities, 
where NATO has not alleged that they were being used for military 
purposes or to incite violence;

  Sustained bombing attacks on oil chemical and pharmaceutical 
targets that, according to environmental experts, have caused 
serious damage to the ecosystem, outweighing any military value.

None of this is intended to suggest any false moral equivalence 
between Slobodan Milosevic and NATO, or to ignore or obscure 
the horrific crimes against humanity committed by Mr. Milosevic 
and his fellow war criminals. It is only to underscore that 
international humanitarian law applies to all the parties. NATO can-
not claim immunity for any breaches of that law because of Mr. 
Milosevic's criminality. NATO leaders should bear that in mind as 
they continue their intensified bombing campaign, including area 
bombing — particularly after their NATO summit communique 
itself acknowledged that their intensified bombing might involve 
"collateral damage" to civilians.

NATO may comfort itself that few seem to have noticed this 
communique or to have been sufficiently outraged by it, or by the 
horrific "collateral damage" that has followed in its wake; and 
NATO leaders may seek solace in the thought that they are the 
forces of light against the forces of darkness. But even the forces of 
light cannot violate fundamental norms of international 
humanitarian law.


Irwin Cotler is a professor of law at McGill University and an 
international human rights lawyer. He has written extensively on 
war-crimes law.